Marks v. State , 144 Tex. Crim. 509 ( 1942 )

The unusual circumstances of this case with the question presented called for the most careful consideration of the facts by all members of the court on original submission. It is impossible to lay down a rule for the weighing of evidence in order to determine its sufficiency in each and every case. We can only agree on the principles which must be considered in weighing the evidence of the case, each one of which has its particular circumstances.

Anxious to adhere as nearly as is humanly possible to the holdings of the court in the past, we have again considered the evidence in the light of the authorities presented and have reached the conclusion that the record before us justifies the conclusion reached in the majority opinion. We think that there are other circumstances than those discussed in the original opinion which have been of value to the writer in reaching such conclusion. Because of this we re-state and add to such facts as are at this time considered potent.

Mr. Alexander first withdrew his money from the bank and placed it with the wife of appellant on April 2, 1941. This was Wednesday. She placed the money in a belt which she had made and put on him next to his body. He then went home with instructions to return the next day for further consideration, the nature of which is not given. Upon his return she examined the belt, rubbed his back, wrapped the belt supposed to contain the money up in a handkerchief, told him to take it home, keep it six days and come back. After three days he became uneasy and, upon unwrapping the belt, found that it did not contain the money and that it was not the same belt as the one which she had placed the money in the first instance. She might have switched the money on April 3rd, or it might never have been in the belt. At 11 o'clock at night on Thursday, April 3rd, appellant went to the home of the Singer Sewing Machine agent and woke him up and arranged to return the sewing machine which he had purchased. On the second day of the month he went to the shop of Ross Smith where he was having a tarpaulin made for a trailer and paid for the service. This was about 2 o'clock in the afternoon. In doing so he presented a twenty dollar bill. Smith could not change it. The defendant made an excuse for not wanting to go to town and did the unusual thing of compensating Smith for his services in going to the bank to present the bill and get change for it. Alexander had several twenty dollar bills in the money delivered to his wife. At that time appellant stated to Smith that he had "completed his job and was leaving." No explanation is given as to what that job was, but all the circumstances of the case indicate that the only thing that had been completed was the victimizing by his wife of Alexander.

Appellant went by the name of Thompson, but explained to people with whom he had transactions that his name was "M. Suntoure" or "J. Suntoure." He is now charged as "Nick Marks." The use of the three different names seems to have been a practice before, during and after the time of the transaction involved and may reasonably be considered as a circumstance to indicate guilty intention.

Criticism is made of some conclusions of fact in the original opinion which we do not believe is justified. The place of business was evidently a trap for Alexander or such other person or persons as might be enticed into it and induced to listen to the fanciful undertaking. Appellant was in and about the premises, usually entering from the rear and playing in an alley nearby with children while his wife operated in the front. As a background for her parlor there was a curtain of tapestry, usually an expensive commodity; in the living quarters were other things, some of which were rented and some appear to have belonged to them. The opinion said that they probably left at night. This is clearly indicated by his sewing machine transaction at 11 o'clock and the further fact that no one saw them there at any time thereafter. The flight, as set out in the original opinion, is a circumstance of guilt and the condition under which he left adds force to it. The valuable curtains and other things referred to were left in the building so that it appeared from the front that they were still transacting business. This could be interpreted in no other way than to have the purpose of creating the impression that they were still there and to keep down suspicion on the part of Alexander, or anyone else, should he return or be passing before the expiration of the six days which seem to have been arranged for the purpose of making the escape. Appellant left fully aware of all of this, thus immediately connecting himself with the transaction, and even beginning such arrangement on April 2nd, which was immediately after Alexander got the money from the bank and took it to the wife and before the last part of her transaction on April 3rd. It is, therefore, shown that before she completed her swindle he was making his arrangements to take flight and escape arrest. It is clearly indicated that he was active on the last day of the transaction between his wife and Alexander with this in view; that he completed such arrangements as he did make at 11 o'clock during the night and left some time thereafter, probably that night, as indicated in the state of the evidence, without returning rented furniture or carrying his own belongings which were in view of the street, all of which indicate his intention at the time of leaving without warning and to create the impression either that they were still there or would return.

The nature of the business may be considered at all times. The crime committed was through the means of claim to superior and mysterious power akin somewhat to the very representation made by appellant in a newspaper advertisement for which he was responsible.

It is a conspicuous fact in this case that no testimony was offered by appellant from any source to deny or explain away the circumstances which the evidence in the record has woven about him. It is far more than a mere suspicion. Having come to the conclusion that the jury was warranted in finding appellant guilty of the charge of conspiracy, the motion for rehearing is overruled.